Negligent v. Accidental Discharge

Perhaps one of the most embarrassing (and dangerous) avoidable situation for an officer to have is a negligent discharge (ND) of their firearm. The situation is an immediate announcement of the failure of an officer to follow safety protocols, and in some cases the result of the (ND) is far more tragic than humiliation and discipline to the officer. Recent examples of this abound.

Take for example the recent case with a BART Transit Authority officer who inadvertently discharged his sidearm and killed a suspect that was laying prone on a very busy train platform. [Ed. note: You can read more on the specific incident here. The Force Science Institute gives a very good presentation of the facts immediately surrounding the shooting.]

These situations must end, and perhaps the only way to fully address the situation is to ensure that we view each situation individually for what it is. In some circumstances that will absolutely place the spotlight on the officer’s failure to follow safety protocols. However, in other situations the officer could be completely exonerated as a more mechanical reason for discharge is discovered.

THE POWER OF WORDS

The power of words cannot be taken lightly. Indeed, the English language is full of alternative words to help clarify the author’s or speaker’s original intent, because the original word opens the door to interpretation. As officers we often use humor to overcome tragedy. In the case of an officer who has suffered an unintentional discharge, the manner of response from fellow officers can likely have long-lasting effects – positive or negative.

Perhaps one of the most famous literary quotes illustrates this importance in classic brevity, “the pen is mightier than the sword” (Edward Bulwer-Lytton, for the play Richelieu, 1839). This was a similar idea that was penned by Shakespeare in his play, Hamlet, 1602, when he wrote, “many wearing rapiers (thin swords) are afraid of goose-quills (writing pens) and dare scarce come hither”.

In other words, we can sometimes do more damage with our words, than with the weapons we carry. To this extent I wanted to post this article and discuss the use of terminology in relation to one of the worst situations to confront an officer.

NEGLIGENT vs. ACCIDENTAL DISCHARGE

Some in the law enforcement community have interchanged the terms negligent discharge (ND) with an accidental discharge (AD). There are some places in the country that specifically use “accidental” discharge, regardless of the circumstances, in a feeble attempt to minimize culpability. Yet a closer examination into the power of the words, I believe, causes a need to understand that these two situations are entirely different. And the career of an officer may be put into jeopardy if the investigation is handled in a one-size fits all approach.

I understand how some instructors or administrators want to place all of the fault on an officer – the firearm is an inanimate object, it didn’t shoot itself, right. However, I do believe that their are rare instances where a weapon malfunction, or another unforeseen circumstance can cause a discharge. For example, a firearm could discharge due to manufacturing defect.

That discharge is not the result of any negligence, and should not be classified as such. In those rare situations extra caution should be used in how we as fellow officers respond to the officer who happened to be holding the weapon that discharged.

I provide these definitions as only an example of how the two situations can be distinguished and more properly characterized.

Negligent Discharge – a discharge of an officer’s firearm, whether intentional or not, that was primarily caused by the officer’s failure to follow established safety procedures or legal justifications for deadly force.

Accidental Discharge – an unintentional discharge of an officer’s firearm that was not caused by any negligence or failure to follow established safety procedures.

Wrongly placing blame on an officer could have long-term negative effects, just as not holding an officer accountable for an obvious error could create a pathway to disaster. How these situations are classified can have long-reaching effects within a department. If an officer gets screwed over because of a mechanical failure the rest of the officers lose faith in the fairness of the investigation. Now they have to fear a true accident regardless of their efforts at safety. If an officer is not held accountable for an obvious error, the rest of the officers lose faith in supervision and the offending officer. Now the officers have to fear what the offending officer may do on the next call they’re on together.

A CRITICAL EXAMINATION

Let’s take a look at the examples I’ve provided above. In the first example a Bay area Transit officer was assisting in the arrest of a suspect at a train station. Without any observable justification to use deadly force, the officer discharges his weapon and tragically kills the suspect. In this case the only reasonable conclusion is that the officer violated safety rules causing the discharge. This one goes down as a Negligent Discharge.

In the second example the New York City Transit officer was attempting to assist another officer in handcuffing a suspect they had chased down. Again, the suspect was on the ground, and there is no report that the suspect was fighting with the officers. In an attempt to holster his weapon, the officer’s pistol discharges and strikes the subject in the leg. The investigation continues in this one so more details may come out to help form a conclusion. However, I think there is enough here to at least contemplate the two most likely hypothesis: one supporting accidental and one supporting negligent.

As the officer was placing the sidearm into his holster something got caught up on the trigger causing the discharge. This could have been part of the holster, part of his uniform, or another piece of equipment on his duty belt. If any of these situations occurred, there was no specific violation of safety rules by the officer. As such, this situation could reasonably be classified as an Accidental Discharge.

The potential for this occurrence is much more likely with SWAT officers as their heavy vests covered with pouches and accessories provides an abundance of opportunities for something to get caught in a trigger guard causing a discharge. Detectives also have a higher risk because their holsters and equipment are often much more loose fitting than a traditional duty belt.

Under many circumstances this could reasonably be classified as an Accidental Discharge. A proper investigation could lead to changes in how equipment is carried to prevent further problems.

If the officer had his finger on the trigger that is a violation of the safety rules and this would be a Negligent Discharge. At the time of discharge there was no justification for deadly force, and in fact the officer was putting his sidearm away.

Finally, the case of the SWAT officer who shot his partner in the back. In this case the officers had left training to get some drinks, and upon return were not safety checked before entering the training area. The deceased officer had never been struck with a Simunition round and asked to be shot so he could know what it felt like. The shooting officer retrieved his live weapon and fired, killing the other officer.

We here at Bluesheepdog.com have repeatedly expounded upon the concept of officer safety, and in particular how officers handle and use their firearms. In this case there was a failure of the instructor, a failure of the safety officer (we are all safety officers), and a failure of the officer who fired the shot. The result is a dead officer, an officer whose career is ruined (the shooter), and an entire department and several families crippled by a senseless death. There is no other way to look at this example then to call it for what it was – a Negligent Discharge.

CONCLUSION

As law enforcement professionals we must hold ourselves to the highest standards. In many cases of an inadvertent discharge there was a failure to follow safety protocols. In those events we are left with no other choice then to call it for what it was – a Negligent Discharge.

Understandably it will have consequences for the offending officer, but it has to be that way. We must protect other officers, the public, and the welfare of the entire Department from future disaster. As we’ve seen, a negligent discharge that injures or kills, also ruins careers and effects the entire department when hefty settlements are paid out to victims. This does not take into account the emotional turmoil for the victims and involved officers.

On the other hand, officers who followed safety protocols and merely suffered a discharge due to a mechanical failure, or an inadvertent foreign object entering the trigger well, should be afforded the exoneration that comes with an entirely different finding – an Accidental Discharge.

Words have meanings. And words should not be used lightly. I hope I’ve made an argument that a negligent discharge is completely different than an accidental discharge. Both situations are serious, and the investigation into both must be thorough. However, the ultimate positive outcome may rest on how we as the law enforcement community respond to the officers who find themselves in these situations (good or bad).

Aaron is a sergeant with a midwestern police department, where he serves as a trainer, supervisor and SWAT sniper. In addition to his broad tactical knowledge, Aaron has experience in DUI, DRE and undercover narcotics investigations.

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Caliber Press has just released a complimentary article covering some of the arguments I’ve presented here. For another look into firearms safety, training, and eliminating negligent discharges read here: